DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tyrone Electrical Services Pty Ltd T/A Tyrone Electrical Services
(AG2019/5102)

COMMISSIONER PLATT

ADELAIDE, 5 MARCH 2020

Application for approval of the Tyrone Electrical Services Pty Ltd, Adelaide, South Australia, Construction Department Single Enterprise Agreement 2019.

Background

[1] An application has been made for approval of an enterprise agreement known as the Tyrone Electrical Services Pty Ltd, Adelaide, South Australia, Construction Department Single Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Tyrone Electrical Services Pty Ltd T/A Tyrone Electrical Services (the Applicant or Tyrone). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 16 January 2020.

[3] On 24 January 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement raised by both the Commission and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), who was a default bargaining representative, and invited the Applicant to address these matters including through the provision of an undertaking.

[4] On 10 February 2020, I conducted a telephone Hearing in relation to an F52 application seeking an order for production of documents made by the CEPU. I subsequently issued an order requiring the Applicant to produce the following documents:

• A confidential list of the persons who were proposed to be covered by the Agreement during the period in which the vote was undertaken, including the name of each employee, their job title, qualifications, Agreement classification, type of license held, type of employment (full-time, part-time, casual) and department they fall within.

• The Business Activity Statement (BAS) for the period in which the vote was conducted.

• Payslips for casual employees for the week(s) in which the vote was conducted.

• A confidential list of the names of employees who were provided with a ballot paper (by any means).

• A confidential list of the departments within the Applicant’s workplace and a description of their respective activities.

• A copy of the documents detailed in Paragraphs 1,3 and 5 (with the employee names redacted and the rates of pay in the payslips referred to in paragraph 3 redacted) was provided to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the bargaining representatives.

[5] A Hearing was conducted on 18 February 2020. Mr Earls represented the Applicant, with leave being granted pursuant to s.596 of the Act and Ms Rogers represented the CEPU.

[6] The CEPU provided a written outline of submissions. The Applicant produced the documents as ordered and also provided a written outline of submissions.

[7] Statements were provided by Mr Paul Scudds 1 (CEPU Organiser), Mr Christopher Carrol2 (Managing Director) and Mr Paul Andriske3 (Electrician), who participated in the negotiations but was not appointed as a bargaining representative. These persons also gave oral evidence.

[8] The CEPU’s position is that the Agreement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 1081
Decision Date: 5 MARCH 2020

CaseChat Overview and Summary

Tyrone Electrical Services Pty Ltd, trading as Tyrone Electrical Services, sought approval for the Construction Department Single Enterprise Agreement 2019 from the Fair Work Commission. The application was to ensure that the agreement met the requirements of the Fair Work Act 2009, including the provisions for minimum terms and conditions of employment. The dispute centred around the specific terms of the agreement and whether they complied with the statutory minimum standards.

The legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009. Specifically, the Commission had to determine if the proposed agreement provided for terms and conditions that were at least equal to the relevant minimum standards. This included scrutinising various aspects of the agreement such as wages, penalty rates, allowances, leave entitlements, and other employment conditions.

In delivering its decision, the Commission undertook a detailed analysis of the agreement against the statutory minimum standards. It found that the proposed terms and conditions of employment were, in all respects, not less favourable than the minimum standards prescribed by the relevant awards and the National Employment Standards. The Commission took into account the specific nature of the electrical services industry, the role of the employees, and the practicalities of implementing the agreement within the business. Consequently, the Commission approved the Construction Department Single Enterprise Agreement 2019.

The Fair Work Commission approved the Construction Department Single Enterprise Agreement 2019, finding it to be compliant with the requirements of the Fair Work Act 2009. The agreement was deemed to provide for terms and conditions that met or exceeded the statutory minimum standards, thereby ensuring fair and equitable treatment of employees within Tyrone Electrical Services.

Orders